What to do with unsolicited information

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  • | 12:00 p.m. August 4, 2008
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Is it a lawyer’s duty, if any, to protect information sent by a possible client unilaterally? May an attorney representing himself in a divorce directly contact his nonlawyer wife who is represented by counsel to discuss routine family and child-rearing issues? Both questions were addressed by the Professional Ethics Committee recently.

The committee met during the Bar’s Annual Convention, and also considered a query on whether a law firm could split punitive fees and costs imposed on the opposing party with the firm’s client. As it had before, the committee declined to answer that question.

The Bar Board of Governors asked the PEC to consider a lawyer’s obligation to protect information that is supplied unilaterally by a potential client. Board members noted that with modern technology, people seeking legal representation can inundate a law firm with information, including sensitive materials, using e-mail, faxes, or even telephone voice mail without first contacting the firm to see if it is interested in undertaking the representation.

That raises the question of whether the receiving attorney owes a duty to that person, similar to the confidentiality duty that extends from a face-to-face meeting when a client considers engaging an attorney.

The committee made tweaks to a proposed draft and then approved Proposed Advisory Opinion 07-03.

It holds, in part, that, “the committee generally agrees with the rationale of the state bars that have addressed this issue. The committee’s opinion is that a person has no reasonable expectation that a lawyer will keep confidential information that is sent by that person unilaterally. The committee concludes that such a person is not a ‘prospective client’ within the meaning of Rule 4-1.18, because the lawyer has not discussed the possibility of representation with the person, nor even agreed to consider representing the person.”

That means the lawyer is free to represent an adverse party and share the information supplied by the first person. However, the lawyer, according to the opinion, is bound by Rule 4-1.18 if the lawyer had discussed the possibility of representing the person or agreed to consider representing the person.

The opinion also said that, “The committee cautions lawyers who invite persons seeking legal representation to provide information via the lawyer’s Web site that the lawyer should prominently post a disclosure statement that the lawyer does not intend to treat such information as confidential and that the lawyer may use the information against the person if the lawyer intends to do so.”

The complete text of the opinion was published in a notice in the July 15 News , and Bar members are invited to make comments. Those will be considered by the PEC at its September meeting.

In the divorce issue, the inquiring attorney said he was representing himself in a divorce proceeding while his wife was represented by counsel. Noting Bar rules prohibit an attorney from directly contacting a represented opposing party, the inquirer noted this was causing difficulties in addressing such matters as filing tax returns and discussing parenting and related issues for their children. The wife had attempted to set up a session with her attorney, but difficulties had arisen and no meeting had taken place.

A staff opinion prepared by the Bar advised the lawyer he could not contact his represented wife without her attorney’s consent on any matters related to the divorce. It also noted that, “What communications are within the ‘subject matter of the representation’ is a factual issue that is beyond the scope of an ethics opinion.”

The opinion also said since the inquiring attorney considers this burdensome, he might want to raise the issue in court and seek a judge’s order allowing him to speak directly with his wife on certain matters.

The attorney appealed that to the PEC and the committee modified the staff opinion to omit language that indicated that the lawyer would not be able to directly communicate with the wife whether or not the lawyer was representing himself in the litigation, but otherwise upheld the opinion.

The fee-sharing matter involved ongoing litigation where a judge had awarded millions of dollars in attorneys’ fees and costs as a sanction, to one side for the other side’s misconduct in handling its case.

The inquiring attorney initially inquired whether the award could be shared with the client, and the committee declined to answer that saying it wasn’t clear from the information provided whether the award went to the firm, the client, or both.

The inquirer appealed to the Board of Governors, but changed the inquiry slightly to make the assumption that the fees and costs were awarded to the firm, and not the client.

In their discussions, committee members noted there is no prohibition to the law firm cutting its fees to the client, which would allow part of the fee award to go to the client. But others noted if the client is broke, such an act could be seen as prohibited financial assistance.

In the end, committee members said they don’t have enough information, and declined to make a recommendation.

— Courtesy Florida Bar News